COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00260-CV
AVONDA FOX, INDIVIDUALLY AND APPELLANT
AS NEXT FRIEND TO JACOB FOX
V.
CARLA BROWN, IN HER OFFICIAL APPELLEES
AND INDIVIDUAL CAPACITY;
CRYSTAL YOUNG, IN HER
OFFICIAL AND INDIVIDUAL
CAPACITY; GEORGIA TRAYLOR,
IN HER OFFICIAL AND INDIVIDUAL
CAPACITY; LONA MATHIS, IN HER
OFFICIAL AND INDIVIDUAL
CAPACITY; AND MELODY NALLS,
IN HER OFFICIAL AND INDIVIDUAL
CAPACITY
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FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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1
See Tex. R. App. P. 47.4.
Appellant Avonda Fox appeals from the trial court’s grant of the plea to the
jurisdiction asserted by Appellees Carla Brown, Crystal Young, Georgia Traylor,
Lona Mathis, and Melody Nalls. Fox does not challenge the sole basis for the
trial court’s grant of the plea to the jurisdiction, and we therefore affirm.
Fox brought this suit for wrongful death and negligence as next friend of
Jacob Fox, her son, after he died as a result of being left for a number of hours in
a closed van at his day care on July 20, 2006. The day care was licensed by the
Texas Department of Family and Protective Services through its Child Care
Licensing Division.
Fox’s original petition named Appellees as defendants in their official and
individual capacities, as well as other individuals not involved in this appeal.
Appellees were all employees of the Child Care Licensing Division at the time of
Jacob’s death. Fox subsequently amended her petition to sue Appellees in their
individual capacities only.
Appellees filed a third amended plea to the jurisdiction in which they
asserted that Fox’s claims should be dismissed for lack of standing on the
ground that the pleadings did not allege a causal connection between the injury
and conduct complained of because the injury was the result of the independent
action of a third party. Appellees also asserted that Fox’s claims against them
should be dismissed in accordance with subsections 101.106(a) and (e) of the
civil practice and remedies code.2
2
See Tex. Civ. Prac. & Rem. Code Ann. § 101.106 (West 2005).
2
In March 2011, the trial court granted Appellees’ plea to the jurisdiction,
and in April, the court entered final judgment dismissing all of Fox’s claims. The
order states that ―all claims against [Appellees] in their individual capacities only
regarding standing asserted in [Appellees’] Third Amended Plea to the
Jurisdiction are granted . . . , and any [Appellee] whose Plea is granted is
dismissed from this case with prejudice.‖ [Emphasis added.] Other defendants
not involved in this appeal were nonsuited. In its final judgment, the trial court
referenced this order, stating that after having granted Appellees’ third amended
plea to the jurisdiction, ―all claims against all parties to this litigation have now
been resolved.‖ Accordingly, the trial court ordered that Fox take nothing and
dismissed all of her causes of action with prejudice. Fox now appeals.
In her only issue on appeal, Fox argues that section 101.106 as applied in
this case violates the open courts provision of the Texas Constitution.3 Fox did
not make this argument in the trial court,4 but she urges this court to consider it
nevertheless. Fox does not, however, challenge the trial court’s determination
that her claims fail for lack of standing.
We may not reverse a judgment on appeal based on trial court error unless
we conclude that the error either probably caused the rendition of an improper
judgment or probably prevented the appellant from properly presenting the case
3
See Tex. Const. art. I, § 13.
4
See Tex. R. App. P. 33.1(a); Matter of D.T.M., 932 S.W.2d 647, 652 (Tex.
App.—Fort Worth 1996, no writ) (―Even constitutional arguments are waived at
the appellate level if issues were not before the trial court.‖).
3
to the court of appeals.5 Even if the application of section 101.106 would have
violated the open courts provision in this case, the trial court did not actually base
its decision on that section. Because the trial court did not commit the error Fox
complains of, we cannot say that the error probably caused the rendition of an
improper judgment or probably prevented Fox from properly presenting her case
on appeal. Fox makes no argument that the trial court erred by dismissing her
claims on the basis of standing, and we are prohibited from making the argument
for her and from reversing the judgment on that ground.6 Accordingly, we are
compelled to overrule Fox’s sole issue.
Having overruled Fox’s sole issue, we affirm the trial court’s judgment
dismissing Fox’s claims.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.
DELIVERED: December 15, 2011
5
See Tex. R. App. P. 44.1(a).
6
See Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998) (―It is
axiomatic that an appellate court cannot reverse a trial court’s judgment absent
properly assigned error.‖); Bankhead v. Maddox, 135 S.W.3d 162, 163–64 (Tex.
App.—Tyler 2004, no pet.) (―In its review of a civil matter, an appellate court has
no discretion to fabricate an issue not raised in the appellant’s brief, even though
the court may perceive that the ends of justice require such a course.‖).
4